Ford Fights Source Code Discovery In Acceleration Actions

Ford Motor Co. must provide a portion of proprietary source code to the Plaintiffs in a proposed class action claiming the company’s electronic throttle control system contains a defect that can cause unintended acceleration. U.S. Magistrate Judge Cheryl A. Eifert made a ruling to that effect and Ford Motor Co. is now trying to undo it.

Ford should have a hard job trying to convince Judge Eifert that the relevance of its proprietary source code to discovery in three class actions over unintended acceleration risks in its vehicles does not outweigh the burden that producing the information would pose. The automaker has objected to Judge Eifert’s decision. The ruling in the state court Toyota litigation is a model for the judge to follow in the Ford case in this issue.

In her April 3rd order, Judge Eifert rejected Ford’s argument that the Plaintiffs requested the software as part of a “fishing expedition” and she noted that an investigation of nearly identical claims against Toyota Motor Corp. — that its vehicles’ electronic throttle control system contains a defect that can cause unintended acceleration — proved that the source code is relevant to the Plaintiffs’ claims. Lawyers in our firm tried the Oklahoma case, considered a Bellweather trial, against Toyota and exposed the defect. Ford’s lawyers, in their attempt to change her ruling, told Judge Eifert:

Ford objects to the production of the source code on the grounds that the relevance, if any, of the source code, is minimal, and the significant delay in the proceedings that will result from its production will outweigh any probative value that might be obtained from its production. Because issues surrounding the source code are highly technical and complicated, both as to relevancy and as to the method of any production of the source code, and because of the potential for significant time to be added to the discovery schedule in the case, Ford requests the Court hold a hearing regarding Ford’s objections.

Ford claimed that because it has already provided engineering documents, the software isn’t relevant to the Plaintiffs’ claims. The company added that the programming and algorithms that make up the “nerve center” in its vehicles can’t be altered, meaning the Plaintiffs could just run tests on its vehicles. But Judge Eifert disagreed that the documents are sufficient, stating that the Plaintiffs shouldn’t be forced to rely on Ford’s determination of what information is relevant to their claims.

But, Judge Eifert did agree that the source code should be afforded some special protection and instructed the parties to meet and establish restrictions and limitations that should be placed on the Plaintiffs’ use and review of the code. Judge Eifert said further that if Ford can segregate the portion of the software that relates only to the ETC system from the source code embedded in the powertrain control module, it will only have to provide that segment of code. The case consists of three class actions against Ford consolidated by U.S. District Judge Robert C. Chambers in January.

The Plaintiffs contend that Ford models produced between 2002 and 2010 are prone to sudden, unintended acceleration, and further that the company failed to provide failsafe systems that would prioritize braking over acceleration. Toyota, which is still involved in the MDL over its unintended acceleration defect, has settled nearly 300 drivers’ claims. Those settlements came after our convincing win against Toyota in the Oklahoma City case.

The Ford cases are all in the U.S. District Court for the Southern District of West Virginia. Lawyers in our firm are currently investigating potential claims involving the unintended acceleration defect in Ford vehicles. If you need more information on this subject, contact Graham Esdale, a lawyer in our Personal Injury/Project Liability Section, at 800-898-2034 or by email at Graham.Esdale@beasleyallen.com. Graham was involved in the Toyota case mentioned above.